Citation Nr: 0703548
Decision Date: 02/05/07 Archive Date: 02/14/07
DOCKET NO. 05-13 563 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for a skin disorder, to
include as secondary to Agent Orange exposure.
2. Entitlement to service connection for a right elbow
disorder.
3. Entitlement to service connection for depression.
ATTORNEY FOR THE BOARD
David S. Ames, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1967 to
October 1969.
This matter comes properly before the Board of Veterans'
Appeals (Board) on appeal from a rating decision by the
Department of Veterans Affairs (VA) Regional Office in
Albuquerque, New Mexico. The veteran's case comes from the
VA Regional Office in St. Louis, Missouri (RO).
FINDINGS OF FACT
1. The veteran had active military service in the Republic
of Vietnam.
2. The medical evidence of record does not show that the
veteran's skin disorder is related to military service.
3. The medical evidence of record does not show that the
veteran had a pre-existing right elbow disorder that
permanently increased in severity during military service or
is otherwise related to military service.
4. The medical evidence of record does not show that the
veteran has a current diagnosis of depression.
CONCLUSIONS OF LAW
1. A skin disorder was not incurred in, or aggravated by,
active military service and may not be presumed to have been
so incurred, to include as due to Agent Orange exposure. 38
U.S.C.A. §§ 1110, 1116, 5103A, 5107 (West 2002 & Supp. 2005);
38 C.F.R. §§ 3.303, 3.307, 3.309 (2006).
2. A right elbow disorder was not incurred in, or aggravated
by, active military service. 38 U.S.C.A. §§ 1110, 1111,
1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304,
3.306 (2006).
3. Depression was not incurred in, or aggravated by, active
military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West
2002); 38 C.F.R. § 3.303 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
With respect to the veteran's claims, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326 (2006). Prior to initial
adjudication, a letter dated in September 2003 satisfied the
duty to notify provisions. Additional letters were also
provided to the veteran in November 2003, February 2004, and
May 2004, prior to initial adjudication. See 38 C.F.R.
§ 3.159(b)(1); Overton v. Nicholson, 20 Vet. App. 427 (2006);
see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006). The veteran's service medical records and VA medical
treatment records have been obtained.
In an October 2003 statement, the veteran indicated that he
was seen by a private physician in 1996 or 1997 for a knee
condition. The RO requested all treatment records from the
private physician starting in 1997. In a May 2004 letter,
the private physician's office stated that the only records
relating to the veteran were dated on October 17, 1996.
Since the RO requested records dated in 1997 or later, the
private physician's office did not provide copies of these
records. The RO did not subsequently obtain the October 17,
1996 medical records. Though the October 17, 1996 medical
records have not been associated with the claims file, the
evidence of record does not indicate that they are relevant
to any issue on appeal. In statements from November 2002,
October 2003, December 2003, and October 2005, the veteran
reported that the private physician examined him for a
painful and inflamed left knee. Though the veteran has
stated that his skin condition covers areas which include the
left knee, the evidence of record shows that the October 1996
private medical examination was for the purposes of a
musculoskeletal condition, not a skin condition.
Accordingly, as these records have not been shown to be
relevant to the issues on appeal, a remand for such records
is not necessary.
VA examinations have not been accorded the veteran in
relation to these claims, because there is no competent
medical evidence that any of these disabilities were incurred
in or aggravated by military service. 38 C.F.R.
§ 3.159(c)(4). There is no indication in the record that
additional evidence relevant to the issues decided herein is
available and not part of the claims file. As there is no
indication that any failure on the part of VA to provide
additional notice or assistance reasonably affects the
outcome of this case, the Board finds that any such failure
is harmless. See Mayfield v. Nicholson, No. 02-1077 (U.S.
Vet. App. Dec. 21, 2006); see also Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
Generally, service connection may be granted for a disability
resulting from disease or injury incurred in or aggravated by
active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §
3.303(a). In addition, service connection may be granted for
any disease diagnosed after discharge, when all the evidence
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
In order to establish service connection for the claimed
disorders, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999). The determination as to whether these requirements
are met is based on an analysis of all the evidence of record
and the evaluation of its credibility and probative value.
See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
When determining whether a disability or disease was incurred
in service, or preexisted service, a veteran will be
considered to have been in sound condition when examined,
accepted and enrolled for service, except as to defects,
infirmities, or disorders noted at the time of the
examination, acceptance, and enrollment into service, or
where clear and unmistakable evidence demonstrates that the
injury or disease existed before acceptance and enrollment
and was not aggravated by such service. See 38 U.S.C.A. §
1111; 38 C.F.R. § 3.304; VAOPGCPREC 3-03; 69 Fed. Reg. 25178
(2004).
A preexisting injury or disease will be considered to have
been aggravated by active service where there is an increase
in disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. §
3.306(a). Aggravation may not be conceded where the
disability underwent no increase in severity during service
on the basis of all the evidence of record pertaining to the
manifestations of the disability prior to, during, and
subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. §§
3.304, 3.306(b). A preexisting disease or injury will be
presumed to have been aggravated by service only if the
evidence shows that the underlying disability underwent an
increase in severity; the occurrence of symptoms, in the
absence of an increase in the underlying severity, does not
constitute aggravation of the disability. Davis v. Principi,
276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a).
Aggravation for purposes of entitlement to VA compensation
benefits requires more than that a preexisting disorder
become intermittently symptomatic during service; rather,
there must be permanent advancement of the underlying
pathology. Aggravation is characterized by an increase in
the severity of a disability during service, and a finding of
aggravation is not appropriate in cases where the evidence
specifically shows that the increase is due to the natural
progress of the disease. Furthermore, temporary or
intermittent flare-ups of a preexisting disease during
service are not sufficient to be considered aggravation of
the disease unless the underlying condition, as contrasted to
symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304,
306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991);
Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996).
Agent Orange
Additionally, a veteran who, during active military, naval,
or air service, served in the Republic of Vietnam during the
Vietnam era shall be presumed to have been exposed during
such service to an herbicide agent, unless there is
affirmative evidence to establish that the veteran was not
exposed to any such agent during that service. 38 U.S.C.A. §
1116(f); 38 C.F.R. § 3.307. The following diseases are
deemed associated with herbicide exposure, under VA law:
chloracne or other acneform diseases consistent with
chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's
lymphoma, acute and subacute peripheral neuropathy, porphyria
cutanea tarda, prostate cancer, respiratory cancers (cancer
of the lung, bronchus, larynx, or trachea), soft-tissue
sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's
sarcoma, or mesothelioma), and diabetes mellitus (Type 2).
38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. §
3.309.
In this case, the veteran claims that he developed a skin
condition in service, to include as the result of exposure to
Agent Orange. The evidence of record reveals that the
veteran served in Vietnam. Under 38 U.S.C.A. § 1116(f), he
is therefore presumed to have been exposed to herbicide
agents, to include Agent Orange. However, the medical
evidence of record does not show a current diagnosis of a
presumptive disorder under 38 C.F.R. § 3.309(e). The
veteran's skin condition has been diagnosed as eczema and
dermatophytosis, which are not acneform diseases consistent
with chloracne. Consequently, the veteran does not have a
disability that would warrant service connection on a
presumptive basis based on Agent Orange exposure.
Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit has determined that the
Veterans' Dioxin and Radiation Exposure Compensation
Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-
29 (1984), does not preclude a veteran from establishing
service connection with proof of actual direct causation.
Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The United
States Court of Appeals for Veterans Claims has specifically
held that the provisions of Combee are applicable in cases
involving Agent Orange exposure. McCartt v. West, 12 Vet.
App. 164, 167 (1999).
Skin Disorder
The veteran's service medical records include an entrance
examination report which showed a history of mild athletes'
feet. However, on physical examination, no skin
abnormalities were found. On service discharge, the physical
examination showed no skin abnormality.
After separation from military service, a VA examination in
November 2002 found the veteran's skin was normal.
Thereafter, an April 2005 VA outpatient medical report gave a
provisional diagnosis of eczema on the hands and at other
locations.
In a June 2005 statement, a friend of the veteran stated that
the veteran "after his return from Vietnam had rashes on
different areas of his body. And complain[ed] of not getting
a decent night['s] sleep. The rashes were noticeable by
friends and relatives, it never went away. He was
uncomfortable around people because of his skin condition,
for the fact it's noticeable."
A July 2005 VA outpatient medical report stated that the
veteran complained of eczema. On physical examination, the
veteran was "unchanged." The assessment was eczema of the
hands and questionable legs, bilaterally.
An August 2005 VA outpatient dermatology report stated that
the veteran complained of itchy, scaly hands and feet. The
veteran stated that this condition first occurred in the
1960s after Vietnam. He stated that the course was relapsing
and remitting, sometimes with a clear fluid coming out of his
legs. The assessment was dermatophytosis of the skin.
The medical evidence of record does not show that the
veteran's skin condition is related to military service. The
veteran's service medical records are negative for any
diagnosis of eczema or dermatophytosis. While the veteran
has a current diagnosis of these conditions, there is no
medical evidence of record that his current skin disorder was
diagnosed prior to 2005, over 35 years after separation from
active duty. See Mense v. Derwinski, 1 Vet. App. 354, 356
(1991) (holding that VA did not err in denying service
connection when the veteran failed to provide evidence which
demonstrated continuity of symptomatology, and failed to
account for the lengthy time period for which there is no
clinical documentation of his low back disorder).
Additionally, there is no medical evidence of record relating
the veteran's skin condition to military service. The only
medical evidence of record that discusses the etiology of the
veteran's skin condition is the August 2005 outpatient
dermatology report. The Board notes, however, that the
statements in this report were based upon the veteran's
reported history. See Elkins v. Brown, 5 Vet. App. 474, 478
(1993). Such evidence cannot enjoy the presumption of
truthfulness, because a medical professional is not competent
to opine as to matters outside the scope of his or her
expertise, and a bare transcription of a lay history is not
transformed into "competent medical evidence" merely
because the transcriber happens to be a medical professional.
See Layno v. Brown, 6 Vet. App. 465, 469 (1994) ("in order
for any testimony to be probative of any fact, the witness
must be competent to testify as to the facts under
consideration"). The United States Court of Appeals for
Veterans Claims has held that medical professionals are not
competent to transform a lay history, unenhanced by medical
comment, into competent medical evidence based on their
status as medical professionals. LeShore v. Brown, 8 Vet.
App. 406 (1995). Additionally, although the August 2005 VA
outpatient dermatology report diagnosed a skin condition, the
examiner did not provide an opinion as to whether the current
disorder was related to military service. Accordingly, the
August 2005 VA outpatient dermatology report does not provide
a nexus relating any currently diagnosed skin condition to
military service.
The statements of the veteran and his friend alone are not
sufficient to prove that his currently diagnosed skin
condition is related to military service. Medical diagnosis
and causation involve questions that are beyond the range of
common experience and common knowledge and require the
special knowledge and experience of a trained physician. As
they are not physicians, the veteran and his friend are not
competent to make a determination that his currently
diagnosed skin condition is related to military service.
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit
v. Brown, 5 Vet. App. 91, 93 (1993). As such, there is no
medical evidence of record that relates the veteran's
currently diagnosed skin condition to military service.
Accordingly, service connection for a skin condition is not
warranted.
In reaching this decision, the Board considered the doctrine
of reasonable doubt. However, as there is no medical
evidence that relates the veteran's skin condition to
military service, the doctrine is not for application.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Right Elbow Disorder
The veteran's service medical records show that on the
December 1967 entrance examination, the veteran reported a
history of a left elbow disorder to an injury in 1966 that
was not symptomatic at the time of the examination. On
physical examination, no abnormality of the right or left
elbow was found. The service medical records show no
treatment, finding, or complaints of a right or left elbow
disorder. The veteran's separation examination was negative
for any right or left elbow disorder.
Subsequent to service discharge, in a November 2002
statement, the veteran reported that a friend fell on his
right arm in the fall of 1967, injuring his right elbow. The
veteran reported that at his entrance examination, he
informed the examiner that his right elbow was hurting. The
veteran further stated that the examiner told him that his
elbow was "alright, so nothing more was said." The veteran
reported that his arm continued to hurt through military
service and was aggravated by training. He stated that his
elbow continued to hurt to the present time.
A November 2002 VA medical examination report stated that the
veteran complained of intermittent pain of the right elbow.
The veteran reported that his initial right elbow injury
occurred in November 1967 at army "going away" party,
causing weeks of arthralgia. He further stated that machine
gun drills precipitated right elbow arthralgia and he was
placed on "KP" and guard duty rather than usual training.
The veteran stated that he had not had elbow surgery. On x-
ray examination of the veteran's right elbow, the report
noted that there were changes which suggested a prior trauma.
The diagnosis was post-traumatic changes of the right elbow.
In an October 2003 statement, the veteran reported that at
his military separation examination, he informed the examiner
about the pain in his elbow, but the examiner did not record
the information. In a December 2004 statement, the veteran
stated that he was rushed through his military separation
examination in order to catch a flight home. The veteran
stated that when he tried to tell the examiner about his
elbow, other soldiers in line agitated and complained.
In an April 2005 VA outpatient medical report, the veteran
reported that he had an injury to his right arm prior to
entering military service and that at the time of the report,
he had numbness, tingling, and loss of sensation in the
fingers of his right hand. The veteran complained of pain in
his right elbow since an injury in the 1960s.
A May 2005 VA outpatient medical report stated that the
veteran complained of abnormal sensations and numbness from
the right elbow into the last 3 digits of his hand, for the
previous 5 years. The impression was abnormal study, with
electrophysiologic evidence of mild sensory neuropathy.
In a May 2005 VA outpatient triage assessment report, the
veteran reported that he had a "history of right arm pain,
stemming for many years, even prior to his military service.
However, he stated that his pain was worsened through
participation in military activities."
In a June 2005 statement, the veteran reported that the
examiner at the military entrance examination did not
properly examine his right elbow. He also reported that
other soldiers "wanted the line to keep going" at his
military separation examination.
In an October 2005 statement, the veteran reported that he
had injured his right elbow shortly before the military
entrance examination. He stated that it was swollen, itched,
he could not straighten it, and he would not let the examiner
touch it. He stated that the examiner looked at his arm and
gave him two Aspirin tablets. The veteran stated that the
next day he informed another person about his elbow, was told
he was okay, and "sent back to the line." The veteran
reported that his continued to experience a right elbow
condition throughout training and military service. He
stated that at his military separation examination, he
attempted to inform the examiner about his right elbow
condition, but was hurried by other soldiers.
A January 2006 VA outpatient medical report stated that the
veteran complained of right elbow pain for more than 5 years.
The assessment was right arm, elbow, and right shoulder pain,
with electromyography evidence of mild sensory neuropathy.
The examiner stated "I am not sure of the exact etiology of
this condition. It could be related to his alcohol
consumption in the past. Will need to check B12 levels as it
could be idiopathic neuropathy, too."
In a February 2006 statement, a friend of the veteran stated
that he had served in the military with the veteran. He
reported that the veteran had a problem with his right elbow
when they were both at Fort Sill, Oklahoma.
In a May 2006 statement, the veteran reported that the
examiner at the military entrance examination did not record
his complaint about his right elbow. He also reported that
at his military separation examination he told the examiner
about his right hand and elbow, but was hurried to get ready
for a plane flight.
The medical evidence of record does not show that the
veteran's right elbow disorder was incurred in or aggravated
by military service. Initially, the only reference to an
elbow disorder in the veteran's service medical records is
the reported history reference to a left elbow injury on the
December 1967 entrance examination report. Nevertheless, on
physical examination, no finding of an elbow disorder, right
or left, was shown. As noted above, every veteran shall be
taken to have been in sound condition when entering service,
except as to defects, infirmities, or disorders noted at the
time of examination on entering service, or where clear and
unmistakable evidence demonstrates that the injury or disease
existed before entering service and was not aggravated by
such service. 38 U.S.C.A. § 1111. Only such conditions as
are recorded in examination reports are to be considered as
noted. 38 C.F.R. § 3.304(b). The veteran's reported history
of the pre-service existence of a disease or injury does not
constitute notation of such disease or injury, but such a
statement is considered with all other evidence in
determining if the disease or injury pre-existed service.
Harris v. West, 11 Vet. App. 456 (1998), aff'd 203 F.3d 1347
(Fed. Cir. 2000). Accordingly, as the physical examination
of the right elbow upon entrance found no abnormality, the
presumption of soundness as to the veteran's right elbow is
not rebutted and the veteran's right elbow is presumed sound
upon service entrance. The service medical records, to
include his service separation examination, are negative for
any complaints, findings, or treatment of a right elbow
disorder.
The post-service medical evidence that discuss the etiology
of the veteran's right elbow disorder are the November 2002,
April 2005, May 2005, and January 2006 medical reports. The
Board notes that the statements in the November 2002, April
2005, and May 2005 reports were based upon the veteran's
reported history and accordingly cannot be considered
competent medical evidence of etiology. See Elkins, 5 Vet.
App. at 478; Layno, 6 Vet. App. at 469; LeShore, 8 Vet. App.
406. The only medical evidence of record that provides an
opinion as to the etiology of the veteran's currently
diagnosed right elbow disorder is the January 2006 VA
outpatient medical report. The examiner in that report was
unsure of the exact etiology of the disorder and the only
opinions provided were that the disorder "could be related
to his alcohol consumption in the past" or was idiopathic in
nature.
The statements of the veteran and his friend alone are not
sufficient to prove that his right elbow disorder was
incurred in or aggravated by military service. See Espiritu,
2 Vet. App. at 495; Grottveit, 5 Vet. App. at 93.
As such, there is no medical evidence of record to show that
the veteran's right elbow disorder was incurred in or
aggravated by military service. Accordingly, service
connection for a right elbow disorder is not warranted.
In reaching this decision, the Board considered the doctrine
of reasonable doubt. However, as the preponderance of the
evidence is against the veteran's claim, the doctrine is not
for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
Depression
The veteran's service medical records are negative for any
complaints, symptoms, or diagnosis of depression.
After separation from military service, a May 2005 VA triage
assessment report gave Axis I psychiatric impressions of
PTSD, cannabis dependence without physiological dependence,
and nicotine dependence.
A July 2005 VA outpatient medial report gave an Axis I
psychiatric assessment of chronic, delayed PTSD.
The medical evidence of record does not show that the veteran
has been diagnosed with depression. Psychiatric evaluations
in 2005 and 2006 did not include diagnoses of depression.
The existence of a current disability is the cornerstone of a
claim for VA disability compensation. See Degmetich v.
Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the
United States Court of Appeals for Veterans Claims'
interpretation of sections 1110 and 1131 of the statute as
requiring the existence of a present disability for VA
compensation purposes cannot be considered arbitrary and
therefore the decision based on that interpretation must be
affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir.
1998). The veteran's statements alone are not sufficient to
prove that he has a current diagnosis of depression. See
Espiritu, 2 Vet. App. at 495; Grottveit, 5 Vet. App. at 93.
As such, the medical evidence of record does not show the
veteran has a current diagnosis of depression. Accordingly,
service connection for depression is not warranted.
In reaching this decision, the Board considered the doctrine
of reasonable doubt. However, as the medical evidence of
record does not show the veteran has a current diagnosis of
depression, the doctrine is not for application. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for a skin disorder, to include as
secondary to Agent Orange exposure, is denied.
Service connection for a right elbow disorder is denied.
Service connection for depression is denied.
_________________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs